II. CLAIMS AGAINST GLADYS PONCE JACOBS INDIVIDUALLY AND AS GUARDIAN OF HERSCHEL JACOBS, JR.
Defendant Gladys moves to dismiss on several grounds: (1) lack of personal jurisdiction; (2) improper venue; (3) Rule 9(b) (with respect to the fraud claim only); (4) failure to state a claim (with respect to the fraud claim only); and (5) statute of limitations grounds (with respect to the conversion claim). In the alternative, she moves pursuant to 28 U.S.C. § 1404(a) to transfer this case to the District of Puerto Rico. Because the Court finds the jurisdictional motion to be dispositive, it will not reach the other parts of Gladys's motion.
The Plaintiff has the ultimate burden of establishing jurisdiction over the Defendants by a preponderance of the evidence. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981). At this stage of the litigation, however, Plaintiff need only make out a prima facie case for jurisdiction through its pleadings and affidavits. Cutco Industries, Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986). The pleadings and affidavits are to be construed in the light most favorable to Plaintiff, and all doubts must be resolved in the his favor. Hoffritz For Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985).
Personal jurisdiction over a defendant in a diversity action is determined by the law of the state in which the court sits. Savin v. Ranier, 898 F.2d 304, 306 (2d Cir. 1990). Accordingly, the Court must determine if there is jurisdiction over Gladys by reference to New York's long arm statute, New York Civil Practice Law and Rules ("CPLR") § 302.
Plaintiff asserts jurisdiction over Gladys on the basis of CPLR § 302(a)(2), which provides in part: "[a] court may exercise personal jurisdiction over any non-domiciliary or his executor or administrator, who in person or through an agent. . . commits a tortious act within the state" (emphasis added). Plaintiff argues that in processing the allegedly fraudulent claim in its New York office, Met Life acted as Gladys's agent in New York for the commission of the alleged fraud.
To establish agency for the purposes of this section:
Plaintiff need not establish a formal agency relationship. . . . He need only convince the court that [the agent] engaged in purposeful activities in this State in relation to his transaction for the benefit of and with the knowledge and consent of [the] defendants and that they exercised some control over [the agent] in the matter.
Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 527 N.Y.S.2d 195, 199, 522 N.E.2d 40 (1988). While Plaintiff asserts that Gladys benefitted from Met Life's actions in receiving the proceeds of the policy, and that Met Life acted with Gladys's knowledge and consent, Plaintiff fails to allege facts showing that Met Life acted as her agent or that she exercised any control over Met Life. Indeed the facts alleged by Plaintiff in his Amended Complaint are inconsistent with such an agency relationship. The absence of the element of control bars a finding of jurisdiction over Gladys on an agency theory. This decision does not bar Plaintiff from proceeding against Gladys in Puerto Rico.
Accordingly, the claims against Gladys, both individually and as guardian for Herschel Jr., must be dismissed for lack of personal jurisdiction.
For the reasons set forth above, the motions are granted. This action is dismissed.
IT IS SO ORDERED.
Dated: New York, New York
June 24, 1992
Robert P. Patterson, Jr.